Hate Speech

(EDWIN BAKER)
Given the evils of hate, any argument for protecting is, at best, an uphill effort and, at
worst, simply misguided. Many people either accept or, at least, wonder whether they should
accept, an argument that goes something like this:
Anyone sensitive to the horror of genocide knows that hate pervades the atmosphere
at such times. Few goals can rank higher than preventing genocide and the murderous racial
conflicts presented to the world during the twentieth century. Moreover, it is difficult to find
any value in the freedom to engage in racist hate speech. Important but ultimately less
significant values such as free speech cannot, for any sensitive person, lead to any pause in
outlawing the speech that contributes to these horrors. Whether or not the ban will be effective
in even a few cases at preventing genocide or racial violence, the mere possibility that it will
more than justifies the ban.
As an advocate of almost absolute protection of free speech, I should explain the grounds for
my valuation of free speech and rejection of the above claim. That explanation, it turns out, is
too ambitious for this essay. Nevertheless, Part I describes but does not defend a theory of
why racist or hate speech should be protected a theory that I believe provides the best,
though often unrecognized, explanation of existing American case law but one that is surely a
controversial, probably minority, view even in the United States.
Most readers will realize, as do I, that these theoretical grounds do not really answer my
imagined proponent of regulation. Thus, Part II describes the empirical evidence that would
cause me to abandon the theory described in Part I, at least in the context of some category of
racist or hate speech, but then gives reasons to doubt that this evidence will be forthcoming.
In the end, this essay is more a call for more knowledge I stand ready to be shown that the
relevant evidence overrides my doubts about the efficacy of suppression.
But given the inevitable empirical uncertainties in evaluating such evidence, Part II does not
answer the last sentence of the imagined argument for regulation set forth above about the
mere possibility of making a contribution toward prevention. Thus, the final part of this essay
offers a different answer: it considers reasons to expect, as a practical matter, that hate speech
regulation is more likely to contribute to genocidal events and major events of racial violence
than to reduce them. These historical horrors help justify, or so I suggest, greater protection
for speech. My hypothesis is that the empirical investigation supports the gamble that strong
speech protection leads to better results.
Before beginning, however, I offer the following preface. Constantly, references to
American exceptionalism are made in discussions of free speech. Usually the suggestion is
that the United States is extremely protective of free speech, disregarding most contrary
values, while Europeans, although generally protective of core speech freedoms, have a
margin of appreciation that also recognize other important values that it considers in
determining the extent of protection of speech basically an approach Americans call
balancing. This suggestion of difference is, at best, overblown. First, in many contexts
many Europeans favor including some Justices on the European Court of Justice
something close to what has been portrayed as the strongly speech-protective American
position. For example, a 2004 decision of the Hungarian Constitutional Court, followed its
earlier 1992 decision in repeatedly invoking the American clear and present danger test in

finding unconstitutional a law that punished speech provoking racial hate.1 In contrast, many
if not most American First Amendment scholars and courts favor balancing that is quite like
what is portrayed as the European approach.2
Moreover, though some Americans I am one favor the strongly speech-protective
approach identified with American exceptionalism, that approach has been in the United
States a fighting faith that often has not (yet) prevailed. Admittedly, the last half of the
twentieth century saw generally increasing protection of speech in America. Still, earlier in
the twentieth century, American courts regularly approved limits, jailing or fining people for
their speech activities. All sorts of expression have been prohibited and punished speech
favoring socialism, communism, anarchism,3 and an even more mainstream political
editorial;4 racist speech5 or sexually explicit speech;6 publication and sale of great novels,7
feminist materials important for sex education;8 labor picketing9 and public assemblies.10 And
to this day, the First Amendment, which applies only to governmental not private activity,
does not protect people from being fired by private employers for their speech or political
associations.
Interestingly, putting aside official legal doctrine, some political scientists have concluded that
in practice as opposed to rhetoric the United States is not exceptional in the way these
comments suggest. The impression of one commentator is that, as compared to nine
European democracies, the U.S. has imposed the most severe legal and social obstacles to
political dissent.11 Later this chapter will raise doubts about causal claims. Still, I cannot
help wondering if the extraordinarily sad state not only of American foreign policy but also of
domestic policies, which have left the U.S. with greater income inequality than any other
industrialized democratic country, reflects in part the historically inadequate protection of
speech freedom in the United States. How would our politics have gone if we had not
suppressed labor activists from early in our history, the liberal internationalists during or after
World War I, or wiped progressive thinkers out of the universities and cultural industries
during the McCarthy period, a cleansing that took decades to repair? Much of Zachariah
Chafees classic book on free speech can be read as supporting his speculative comment that
greater respect for free speech at the time of World War I might have lead to a better treaty
after the war, to support in the United States for the League of Nations, and to save[ing]
English children from German bombs in 1941.12 In any event, though prominent advocates
of rather absolutist speech freedom may come from American scholars and jurists, identifying
that position with an American and contrasted with a European reality is exaggerated. Still,
relatively absolutist protection is the view that my comments endorse.